Parent obo Student v. BC Ministry of Education and another, 2025 BCHRT 112
Date Issued: May 14, 2025
File: CS-003399
Indexed as: Parent obo Student v. BC Ministry of Education and another, 2025 BCHRT 112
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Parent obo Student
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Education and the School District
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
SECTIONS 27(1)(A), (C) AND (G)
Tribunal Member: Theressa Etmanski
On their own behalf: Student (by Parent)
Counsel for the Ministry: Rochelle Pauls
Counsel for the School District: Karen Orr
I INTRODUCTION
[1] The Student is a young Indigenous child who has diagnoses of various mental disabilities. The Parents allege that the School District and the Ministry of Education [ Ministry ] discriminated against the Student based on her race and mental disabilities when they would not allow her to attend school full-time or participate in school activities with her peers.
[2] The School District and the Ministry deny discriminating and each bring an application to dismiss the complaint without a hearing pursuant to sections 27(1)(a) and (g) of the Code . Both respondents argue that the allegations are untimely and outside the jurisdiction of the Tribunal. The Ministry further argues that the allegations against it have no reasonable prospect of success, pursuant to s. 27(1)(c) of the Code .
[3] The issues to be determined in this application include:
a. Does the complaint against the Ministry have no reasonable prospect of success because intervening in the educational programming decisions of the School District is not a service customarily offered by the Ministry?
b. Are the allegations against the School District a direct attack on a Ministerial Order, and therefore beyond the jurisdiction of the Tribunal?
c. Do the allegations against the School District amount to a continuing contravention of the Code ?
[4] For the following reasons, I grant the application to dismiss the complaint against the Ministry in its entirety. However, I deny the application to dismiss the complaint against the School District. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II ORDER LIMITING PUBLICATION
[5] Neither party has applied to limit publication of this complaint; however, in their reply submissions the School District has raised the issue of anonymization of this complaint because the Student is a minor. The School District also says the names of School District employees mentioned in the complaint should be anonymized, as it says the allegations against these individuals are weak and have not been proven, and they are not named as respondents. Rules 5(6) and (7) of the Tribunal’s Rules of Practice and Procedure deal with the limiting of publication of personal information. Under Rule 5(7), the Tribunal limits in the ordinary course the public disclosure of information that would identify a minor. As this complaint involves a minor, I agree it is appropriate to anonymize the parties to protect the child’s identity. In the decision I refer to the complainant as the “ Student ”, the parent bringing the complaint on the Student’s behalf as the “ Parent ”, and the respondent School District as the “ School District ”. I do not find it necessary to name any individual School District employees in this complaint, however, this measure is not binding on future Tribunal decisions in the absence of an application. I also do not find it necessary to anonymize the Ministry in this decision for the protection of the Student.
III BACKGROUND
[6] The Student began kindergarten at a school managed by the School District in the fall of 2018.
[7] The Parent says that starting in February 2019, the school did not allow the Student to attend school full-time until March 2020, when the COVID-19 pandemic necessitated a change in circumstances. The Parent says for months the Student was only allowed to attend school for thirty minutes per day. During this time, the Parent says the Student was not permitted to attend any extra-curricular school activities or any in-school activities in a group setting.
[8] The Parent also describes an incident on April 1, 2019, when she was called to the school to pick up the Student because the Student was having “trauma triggered behaviours and several school staff including the principal, vice principal, and [educational assistants] had her cornered in the classroom and she was scared, trapped, and in distress.”
[9] In addition, the Parent says School District staff made several harmful comments about the Student, including:
a. On March 1, 2019, the former vice principal said to the Parent: “it just gets to a point in the day where we just don’t want to deal with her anymore.”
b. On June 1, 2019, the principal said to the Parent: “have you thought about transferring her to a different school?”
c. On August 1, 2019, the previous Superintendent said to the Parent’s advocates that the Student “had pin worms and lice (acquired at school) that the school staff did not want to work with [the Student] because she was a dirty girl.”
[10] The School District says that in April 2019, it decided to place the Student on a partial day program pursuant to the Ministry’s Special Needs Students Order, M150/89 [ Ministerial Order ], which states:
2(2) A board must provide a student with special needs with an educational program in a classroom where that student is integrated with other students who do not have special needs, unless the educational needs of the student with special needs or other students indicates that the educational program for the student with special needs should be provided otherwise.
[11] The Ministerial Order defines a student with special needs as “a student who has a disability of an intellectual, physical, sensory, emotional or behavioural nature, has a learning disability or has exceptional gifts or talents.”
[12] In or around 2019, the Student was diagnosed with Attention Deficit/Hyperactivity Disorder-Combined [ ADHD-C ], anxiety, and Oppositional Defiant Disorder [ ODD ].
[13] The School District says the Ministerial Order clearly applied in the Student’s circumstances. It says that shortly after the Student started kindergarten, her teacher raised concerns regarding some of the Student’s behaviours related to self-regulation and ability to follow expectations in the classroom, which indicated a need for extra support. The School District says these behaviours escalated during the period of January to March 2019, and included task avoidance, touching others, eloping from the classroom, disrupting the class environment, being unable to follow simple adult directions, and running through the school. In response, the School District says it began implementing more interventions and support for the Student. However, despite these additional supports, the School District says the Student’s behaviour continued to escalate to the point that neither her educational needs, nor those of her classmates, were being met.
[14] The School District says that when the Student returned to school for grade one in the fall of 2019, she again attended a partial day program. The School District says the partial day program included a plan for gradual increases of the Student’s time at school based on her progress. The Student’s length of time at school was increased several times in the fall of 2019.
[15] There is no dispute that the Parent disagreed with the Student attending a partial day program.
[16] The School District’s Administrative Appeal Procedure 325 – Formal Complaints and Appeals sets out the procedures to be followed when challenging the decision of a School District employee that significantly affects the health, education or safety of a student, pursuant to s. 11(2) of the School Act . The four-step appeal procedure includes:
a. Step 1: a complaint to the school principal;
b. Step 2: an appeal to the assistant superintendent;
c. Step 3: an appeal to the superintendent; and
d. Step 4: an appeal to the Board of Trustees.
[17] Section 11.1 of the School Act provides for an appeal of the Board’s decision to the Superintendent of Appeals with the Ministry of Education, provided the decision meets certain criteria. The scope of decisions that may be appealed under s. 11.1 is set out in the Appeals Regulation .
[18] The parties agree that the Parent went through the following steps of the appeal procedure:
a. Step 1: appeal to the school principal who upheld the decision to place the Student on a partial day program.
b. Step 2: appeal to the Assistant Superintendent, Learning Services for the School District, who upheld the school principal’s decision.
c. Step 3: appeal to the Superintendent of Schools, who upheld the Assistant Superintendent’s decision.
d. Step 4: appeal to the Board of Trustees for the School District. The Board issued its decision on November 28, 2019, stating that they did not deem it appropriate to require that the Student be immediately returned to full-time attendance at school.
[19] The Parent then appealed the Board’s decision to the Ministry, pursuant to s. 11.1 of the School Act, based on two grounds set out in the Appeals Regulation :
a. That the decision related to the Student’s suspension from an educational program – s. 2(2)(b); and
b. That the decision related to the requirement under the Ministerial Order to offer to consult with a parent of a student with special needs regarding the placement of the student in an educational program – s. 2(2)(f).
[20] The Superintendent of Appeals summarily dismissed the appeal concerning s. 2(2)(f), and an adjudicator rendered a decision dismissing the appeal under s. 2(2)(b) finding that it did not have jurisdiction to hear the appeal because the Student had not been suspended from school [ Ministry Appeal Decision ].
[21] The Parent alleges the Ministry did not take responsibility for ensuring that the Student was appropriately accommodated to receive full-time education. In other words, the Parent alleges that the Ministry ought to have intervened in the decisions and actions of the School District with respect to the Student’s educational programming.
IV DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[22] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[23] The Ministry applies to dismiss the allegations against it on the basis that they have no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Ministry to establish the basis for dismissal.
[24] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[25] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[26] To prove their complaint at a hearing, the Student will have to prove that she has a characteristic protected by the Code , she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Ministry to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[27] First, with respect to the Ministry Appeal Decision, the Ministry says the complaint has no reasonable prospect of success because it does not allege any facts that could support a finding that the appeal process or the decision itself was discriminatory. Rather, it appears that the complainant simply disagrees with the result of the decision of the adjudicator appointed under the School Act and is inviting the Tribunal to essentially engage in a judicial review of the decision. I agree with this characterization. While the Tribunal has jurisdiction over the services provided by administrative tribunals, it cannot engage in a review of findings of fact and law to reach a finding of discrimination: Madadi v. B.C. (Ministry of Education) , 2012 BCHRT 380 at paras. 94-121. The Student has not alleged facts against the Ministry with respect to this allegation that would take the question of nexus to one or more protected characteristics out of the realm of conjecture.
[28] Next, The Ministry says the complaint has no reasonable prospect of success because the allegations against the Ministry do not form part of a service it customarily offers to the public. Rather, the complaint alleges that the Ministry ought to have intervened with respect to actions of the School District, and ought to have ensured the School District had necessary accommodations in place for the Student to allow her to attend school full time. However, the Ministry says it is not required, or even permitted, further to the School Act or otherwise, to intervene with respect to decisions made by school administrators or boards of education regarding educational programs and student learning.
[29] For the following reasons, I agree with the Ministry that the Student has no reasonable prospect of successfully proving these allegations at a hearing.
[30] The Ministry says allegations that it ought to have acted and did not, in the absence of a legislated role for the Ministry, is not sufficient to establish a nexus or connection between a protected characteristic and an adverse impact. The Tribunal has previously held that human rights law does not impose a positive obligation on government to provide a service. Rather, once government chooses to provide a service it must not do so in a discriminatory manner: Hasek v. BC Ministry of Health (No. 2) , 2018 BCHRT 187.
[31] The Ministry says there has been a clear legislative choice, as set out in the School Act , to divide the roles and responsibilities for K-12 education in BC between the Ministry and the School District. The services the complaint claims the Ministry ought to have provided have not been delineated as within the scope of the Ministry’s jurisdiction and/or authority and would involve an inappropriate intrusion into the role and responsibilities of the School District.
[32] Further, the Ministry says there is no evidence that it had any involvement in the decisions or actions related to the Student’s educational program. The Ministry provides funding and oversight at a high level with respect to K-12 education.
[33] In Moore, the Supreme Court of Canada held that the Ministry could not be found liable for the School District’s discriminatory conduct towards the complainant in respect of providing access to general education to students with learning disabilities because the evidence with respect to the provincial funding regime was insufficient to establish that the Ministry discriminated against the complainant: at paras. 54 and 65. In this case, the Ministry acknowledges that it provides funding and oversight at a high level to the School District but says this does not establish that it discriminated against the Student.
[34] I agree. The Tribunal has previously held that the fact that an entity provides funding or oversight to another entity, which in turn provides services, it is not, in and of itself, sufficient to found a contravention of the Code against the funding or oversight entity: Johnson v. British Columbia (Ministry of Health) , 2009 BCHRT 48 at para. 44; Hoffman v. British Columbia (Ministry of Social Development) , 2012 BCHRT 187 at para. 94; Jones obo South Asian Law Students at Thompson Rivers University v. Ministry of Advanced Education and Skills Training (No. 2) , 2023 BCHRT 18 at para. 90.
[35] Based on the information provided, and in the absence of any specific information to refute the Ministry’s position from the Student, I accept that the Ministry is reasonably certain to prove that it was not involved in the decisions made by the School District with respect to the Student, and the Ministry does not customarily provide the service alleged in the complaint. Accordingly, I agree that the allegations against the Ministry ought to be dismissed as having no reasonable prospect of success.
B. Section 27(1)(a) – No jurisdiction
[36] Section 27(1)(a) permits the Tribunal to dismiss all or part of a complaint that is not within its jurisdiction.
[37] The Tribunal can determine its own jurisdiction at a preliminary stage where there are “sufficient foundational facts” and a “clear legal question”: HTMQ v. McGrath, 2009 BCSC 180 at para. 64 . The Tribunal has the discretion to defer a determination of its jurisdiction when additional evidence or factual inquiry is necessary for that determination: McGrath , at para. 64 ; Barker v. Hayes , 2008 BCCA 148 at paras. 33-35 .
[38] The School District argues that the allegations in the complaint fall outside the jurisdiction of the Tribunal. Specifically, the School District says the complainant is improperly attempting to challenge the validity if the Ministerial Order through the Tribunal’s process. The School District notes that one of the remedies sought in the complaint is “changes made to the School Act to protect children who have special needs,” which is beyond the Tribunal’s authority. The School District says it has the legal authority to put students on a partial day program pursuant to the Ministerial Order, under section 75 and 168(2)(t) of the School Act . In this case, the School District says that the Student demonstrated behaviour which met the criteria for a partial day program as set out in the Ministerial Order.
[39] I agree with the School District that the Tribunal does not have the authority to overturn the Ministerial Order or to find the Ministerial Order itself invalid. Similarly, the Tribunal cannot order that changes be made to the School Act . However, I am not persuaded that the allegations in the current complaint are outside of the jurisdiction of the Tribunal.
[40] Although reforms to the School Act are raised in the complaint as a potential remedy, I read the allegations as encompassing concerns about the manner in which the Ministerial Orders were applied in these circumstances, and the impact on the Student as an Indigenous child with disabilities, rather than the validity of the Ministerial Orders themselves. This is not a complaint challenging the non-discretionary application of legislative criteria, for example. The determination of the “educational needs” of a student with special needs or other students, as well as the appropriate alternative programming for a child with special needs, per the Ministerial Order, are discretionary decisions made by teachers or other School District personnel. These decisions, if influenced by the protected characteristics of an affected student, are within the Tribunal’s jurisdiction to review.
[41] The School District’s position regarding the remedy sought can be revisited if the Student makes out her case of discrimination at a hearing.
[42] In its reply to the Parent’s response to the current application, the School District further argues that the complaint is also outside the jurisdiction of the Tribunal because the complaint does not appear to allege discrimination with a nexus to any protected ground. In other words, the School District says there are no allegations about the School District breaching the Code in implementing a decision made pursuant to the Ministerial Order.
[43] I do not agree with the School District’s characterization of this issue as one of jurisdiction. Rather, it is part of the human rights analysis the Tribunal must undertake in any case and would more appropriately be raised under s.27(1)(b) or (c) of the Code . Nevertheless, I consider whether the allegations against the School District raise an arguable contravention of the Code under s. 27(1)(g) analysis below.
[44] Accordingly, I deny the School District’s application under s. 27(1)(a) of the Code .
C. Section 27(1)(g) – Timeliness of the complaint
[45] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62 , 2003 BCHRT 39 at para. 12.
[46] Section 27(1)(g) permits the Tribunal to dismiss a late-filed complaint. The School District argues that there is no continuing contravention and all the allegations in the complaint are late-filed and should be dismissed.
[47] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 .
[48] The Tribunal applies the “arguable contravention test” to determine whether the separate allegations, if proven, contravene the Code : see Chen v. Surrey (City) , 2015 BCCA 57 at para. 23; Oram v. South Okanagan Similkameen Mental Wellness Society , 2025 BCHRT 63 at para. 24. The threshold for passing the “arguable contravention test” is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56. The Student must only allege facts that could establish a disability and/or race-based adverse impact in the services provided to her by the School District.
[49] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 . A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14 .
[50] I am satisfied in the current circumstances that the allegations form a continuing contravention, and the most recent act of alleged discrimination occurred within one year of the filing of the complaint. I am further satisfied that the allegations pass the “arguable contravention test.”
[51] The complaint was filed on February 26, 2021. Therefore, any allegation that occurred before February 26, 2020, would be untimely if they did not form part of a continuing contravention.
[52] The parties disagree on the date of the last act of alleged discrimination. The Parent says the most recent date of discrimination was in March 2020, when the Student was not allowed to attend school full-time, attend any extra-curricular activities, or any in-school activities in a group setting. The Parent says this discriminatory treatment lasted from February 2019 to March 2020, without any gaps in time. Therefore, she says all the allegations form a continuing contravention and the complaint was filed on time.
[53] The School District disagrees and asks the Tribunal to find that the last substantive allegation against it is dated August 1, 2019.
[54] The School District says that every allegation against it in the complaint occurred in 2019, more than one year before the complaint was filed. According to the School District, the allegations are as follows:
a. February 1, 2019: The Student was put on partial days of school and was not allowed to participate in school activities or be in attendance with her peers;
b. March 1, 2019: The previous vice principal said: “it just gets to a point in the day where we just don’t want to deal with [the Student] anymore”;
c. April 1, 2019: The Parent was called to the school to pick up the Student because “she was having trauma triggered behaviours and several school staff including the principal, vice principal, and EAs had her cornered in the classroom and she was scared, trapped, and in distress;
d. June 1, 2019: The principal said to the Parent: “have you thought about transferring her to a different school?”;
e. June 1, 2019: The Student was separated from her class and was not allowed to be in a classroom with other children;
f. August 1, 2019: The previous Assistant Superintendent said school staff do not want to work with the Student because she is a “dirty girl”;
g. September 1, 2019: “Step 1” meeting with the principal to appeal the decision not to allow the Student in school full time – denied;
h. September 1, 2019: “Step 2” meeting with the Assistant Superintendent to appeal the decision not to allow the Student in school full time – denied;
i. November 1, 2019: “Step 3” meeting with Superintendent of Schools to appeal the decision not to allow the Student in school full time – denied;
j. November 26, 2019: “Step 4” meeting with Board of Trustees to appeal the decision not to allow the Student in school full time – denied.
[55] The School District says the decision to place the Student on a partial day program occurred on February 1, 2019, by the complainant’s account, and April 2019 by the School District’s account. They say the remaining allegations are largely the family’s dissatisfaction with the outcomes of the various appeals that they filed with the School District.
[56] The key issue I must resolve is whether the continuation of the partial day program for the Student, after the initial decision was made in either February or April 2019, is a continuing contravention, or if the only contravention was the initial decision itself.
[57] The School District says there is a difference between continuing contraventions and the continuing consequences of a contravention: A v. Simon Fraser University , 2007 BCHRT 46 at para. 27; Callaghan v. University of Victoria , 2005 BCHRT 589 at paras. 8-9. Further, they say a “continuing state of affairs” is not the same as a continuing contravention: Vorley v. BC (Min. of Solicitor General) (No. 2) , 2005 BCHRT 511; Yuan v. ICBC (No. 3) , 2006 BCHRT 568; Dove v. GVRT and others (No. 3) , 2006 BCHRT 374. In addition, the School District says the continued application of legislation, in and of itself, does not constitute a continuing contravention, and a repetition of requests and subsequent denials by a service provider on the basis of legislation does not constitute a “separate contravention”: British Columbia (Ministry of Children and Family Development) v. McGrath , 2009 BCSC 180 at para. 223; Callaghan v. University of Victoria , 2005 BCHRT 589, as upheld in 2006 BCSC 1503; Cowie v. Grand Forks District Savings Credit Union , 2006 BCHRT 2008; Eldor v. UBC , 2009 BCHRT 2004.
[58] Following these principles, the School District says any continued partial day programs were the result of the decision in April 2019 to place the Student on a partial day program pursuant to the Ministerial Order, as well as the subsequent appeal decisions.
[59] Further, the School District says the negative appeal decisions upholding the partial day program are reiterations of the earlier alleged contravention only.
[60] Upon review of the record, I am not persuaded that the School District is reasonably certain to prove that the decision to place the Student on a partial day program was a one-time contravention. Rather, there is information on which the Tribunal could conclude that there were a series of ongoing evaluations and decisions made to modify the amount of time the Student could attend school and ultimately determine when she could return to school full-time. In particular, the following information has been provided on this application:
a. The Parent’s Notice of Appeal to a Superintendent of Appeals, which states in part:
January 2020: [Student] attends school from 8am-1pm daily. We meet with the school based team weekly and we are informed if they will allow an increase of time or not. We feel their approach is punitive and arbitrary.
b. The Ministry Appeal Decision reasons, dated June 26, 2020, which found:
I understand that as of mid-February 2020, the student was attending school on a close to full-time basis (about 75 minutes less than a normal school day), and that the parties were working toward full-time attendance prior to the entire public school system being shuttered due to health risks arising from the COVID-19 pandemic. The record shows that the student’s school day has been gradually modified (and extended) over time. In April 2019 she was attending school from 8:45 AM – 11:45 AM; this schedule was modified to 8:37 AM – 11:00 AM in late September 2019, and then gradually increased by 15 minutes in early November 2019, and by an additional 30 minutes in mid-November 2019. In early January 2020, the daily schedule was increased so that her day ended at 1:00 PM, and then at 1:20 PM by mid-February 2020.
[61] Further, in the Complaint Response, the information provided by the School District indicates that when the Student returned to the school in September 2019 for her grade one year, she did not immediately commence a partial day program. Rather, the partial day program was re-implemented in late September following a number of violent incident reports. This information further supports a finding that the Student’s partial day educational programming was based on a series of separate decisions and evaluations, rather than the continuing consequences of a contravention.
[62] I note that a copy of the partial day program plan has not been provided for the purposes of this application, and no other information has been provided regarding the criteria used to determine how the Student’s “progress” was measured. I am not persuaded based on the information before me that the modifications to the Student’s schedule did not involve ongoing decisions by the School District following its initial decision that a partial day program would be appropriate for the Student, or that these decisions were not continuing contraventions of the Code .
[63] Accordingly, I am satisfied that the last instance of alleged discrimination occurred in or around March 2020, when the Student was on a partial-day program, and all the allegations regarding the Student not being allowed to attend school full-time preceding this date form part of a continuing contravention.
[64] I also consider the allegations regarding statements made by School District staff about the Student to form part of the continuing contravention. I find that these allegations, if proven, are of the same character as the alleged decisions to prohibit the Student from fully participating in school, as the Tribunal could conclude at a hearing that the statements describe discriminatory attitudes about the Student’s attendance at the school.
[65] Considered in the full context of this complaint, I am satisfied that these allegations all meet the low threshold for an “arguable contravention” as they allege an adverse impact with respect to the Student’s full participation in school, and an arguable nexus to her mental disabilities and Indigeneity. It is not contested that the Student’s alleged behaviour was connected to her disabilities, and this is the basis on which she was not permitted to attend classes full-time. I am also satisfied that the Tribunal could find that alleged comments by School District staff, who may have been involved in the decisions regarding the partial day program, may have been based in myths, stereotypes, and prejudices about Indigenous people.
[66] For these reasons, I find that the complaint is timely. Had I reached a different conclusion, I would have still found that the public interest favours accepting this complaint. The education system has been identified as a common area of human rights concern for Indigenous children: BC Human Rights Tribunal, (2020) “Expanding Our Vision: Cultural Equality and Indigenous Peoples’ Human Rights” at p. 27; Ontario Human Rights Commission, (2018) “To dream together: Indigenous peoples and human rights dialogue report” at p. 40. Courts and Tribunals have taken notice that Indigenous women and girls have been, and continue to be, particularly subject to hurtful biases, stereotypes and assumptions, including that they are “unintelligent” or “people of low or bad character not deserving of the same respect, humanity and dignity as others”: R. v Zakuti , 2021 BCSC 2253 at para. 25; Lindsay v. Toronto District School Board , 2020 HRTO 496 at para. 23. Here, the Student as an Indigenous girl who has been denied full access to the public education system, requires that this complaint be situated in its full socio-historical context. The Code ’s purpose of identifying and eliminating persistent patterns of inequality associated with discrimination protected by the Code is served by this complaint being heard at a hearing on the merits: s. 3(d).
V CONCLUSION
[67] I grant the application to dismiss the complaint against the Ministry in its entirety pursuant to s. 27(1)(c) of the Code .
[68] I deny the application to dismiss the complaint against the School District. These allegations will proceed to a hearing.
Theressa Etmanski
Tribunal Member